Debates

That The UK Should Have a Written Constitution

That The UK Should Have a Written Constitution

The proposition is that the United Kingdom should adopt a written constitution, explicitly outlining the rights of citizens, the roles of all organs of the government, and the powers (and limitations thereon) of the state. The choice facing the country is therefore whether to adopt the sort of explicit, formal supreme law typified by documents such as the United States Constitution. The alternative is to retain the status quo of its constitution consisting of a variety of informal codes and conventions, many of them unwritten, which guide the political and legal culture of the country. As it stands, parliament enjoys “sovereignty,” whereby it may pass whatever laws it wishes with no higher law limiting its legislation nor any judicial power to question the fundamental legitimacy of the law. Adopting such a constitution would restrict the behavior of the government, and subject all exercises of state power to judicial review. In 2007 then Prime Minister Gordon Brown made proposals for a British constitution and bill of rights which would have restricted the powers of the prime minister in areas such as declaring war[1] however these proposals never came to anything.

Europe

Point

The UK's integration with Europe depends on having a similar legal foundation. Every other EU member has formal superordinate legal documents, such as the French Constitution or German Basic Law. The only other European nation without a written constitution is San Marino, and its government's operations are only a fraction of the UK's size. It is important to enshrine clarity in our legal code in order to engage in intra-EU economic, social, and political relations, because it creates a common conception of the foundation of a state's laws.

Counterpoint

The chances of a tyrant seizing control of the country via election to the House of Commons are very minute indeed. If such a party was indeed popular enough to get elected, constitutional blocks would be of little stop to them. When Hitler came to power by election, he quickly dismantled the constitutional checks on his power, and did so easily because of his wide popular support. It is far wiser to rely on the will of the public to oppose such dictators than to depend on a constitution.

The Constitution as a Means of Evaluating the Legitimacy of Laws

Point

Entrenching the respective rights of individuals and the government adds clarity to issues where the boundaries of the law are vague. Not every time that civil rights are eroded is it the result of the government overstepping what were previously thought to be the clear boundaries of the state’s power; sometimes there is a legitimate grey area regarding the meeting of two rights. For example, some people contest whether anti-social behavioral orders (ASBOs) – which bar individuals from certain activities or place1 – or CCTV cameras, are a legitimate use of the coercive power of the state. Under the status quo, there is no superordinate legal document to which an individual or the government can point when they dispute whether or not a law is legitimate. Thus, while popular opinion can prevent the government from brazen violations of citizens’ rights, more nuanced infringements persist with impunity. A constitution would subject controversial laws to judicial review, yielding a more precise ruling on their constitutionality. Regardless of which way the judiciary rules, it must be backed up by reasoned argument and interpretation of specific legal principles explicitly outlined in the constitution. It is crucial to have an independent metric by which we evaluate when the government reaches the limits of what it may justly legislate.

Counterpoint

A case-by-case approach to determining the validity of laws is better than adopting a one-size-fits-all method of saying, for instance, that privacy never trumps security. If a law's worth is disputed, those who disagree can appeal to principles rather than constitutional clauses when arguing its merits. The metric by which laws are evaluated in a democracy ought to be whether the populace accepts them as just. Furthermore, an explicit constitution does not get rid of such legal grey areas, as even the explicit US constitution is subject to constitution battles over its interpretation.

Much of the Work is Already Done

Point

The documents that currently make up the written component of the UK's informal constitution provide an accessible starting point. Such ancient texts and treaties as the Magna Carta would provide for a smooth transition from commonly-accepted legal principles to the formal entrenchment of those principles in the clauses of a constitution. While under the status quo all laws passed by parliament are considered of equal significance, there is an informal recognition by some jurists that certain laws, such as the Human Rights Act, enjoy a favored position within a hierarchy of laws1. A written constitution would simply help to formalize this de facto hierarchy.1 England and Wales High Court, 'Thoburn vs. Sunderland City Council' EWHC 195, (2002)

Counterpoint

These documents, while an important source of historical legitimacy for current informal constitutional practices, do not represent anything approaching a comprehensive or modern understanding of the rights of citizens. Moreover, their role would in fact be diminished from their current status as an actual part of the collection of written and unwritten ideas that comprise our constitution, becoming instead mere historical documents.

Separation of Powers

Point

A formal constitution provides the separation of powers necessary to keep each part of the government in check. Clearly delineated oversight powers in an independent judiciary would halt Parliament's attempts to overstep its mandate, and provide a mechanism to redress flagrant violations of ethics by MPs. Such a check on the power of the Parliament would be a welcome change from the status quo of a government who may act with little accountability short of an election. Similarly, explicit and independent powers for the House of Lords and the House of Commons would codify a role to hold each other accountable. This would be similar to the way that the United States constitution works with its famous separation of powers and checks and balances with the exception that the executive would still be within the legislature rather than completely separate.

Counterpoint

A good political climate is one where government functions properly. In a representative democracy, decision-making is not intended to be majoritarian. Elected officials are in place to make decisions on behalf of constituents, as they continue to do with matters relating to the EU. As such, a referendum is a direct rebuke to their own power. Therefore MPs should not hold one, even if some constituents want it. It is not the job of government to neutralize radical voices, but to offer better alternatives while preserving freedom of expression. If parties want to resolve the Europe question, they should do so through established political channels.

Excessively Powerful Judiciary

Point

A formal constitution may lead to an excessively powerful judiciary. Judges are, by necessity, unelected in order to provide impartiality when they rule on specific cases. A larger role for the judiciary would empower these unelected officials to "legislate from the bench" by interpreting laws according to their political views and striking down legislation they oppose. For instance, the constitutionally-empowered judiciary of the United States often even goes so far as to dictate the details of social policy1. A constitution would not get rid of unappealable power, but rather transfer that power to a body far less accountable than Parliament.1 Greg Winter, "Judge Orders Billions in Aid to City Schools", New York Times, 15th February 2005,

Counterpoint

See: separation of powers point above. As it would be a new constitution it can be written, or if necessary later amended, so as to limit the ability of judges to engage in judicial activism. Even in jurisdictions such as the United States with powerful independent judiciaries, judges who make radical rulings see their interpretations of the constitution overturned by higher courts, or even face removal in extreme cases.

Excessive Focus on the Letter of the Law

Point

A written constitution leads to an obsession with the text itself. By establishing a formal document as the supreme law of the land, the state creates an incentive for all actors to interpret it in bad faith in order to suit their agendas. Thus, in the United States, politicians, lobby groups, corporations, and citizens all fight over what the phrasing of the "Congress shall make no law respecting an establishment of religion" or "the right of the people to keep and bear arms" means. The result is court battles where parties win on the basis of being in accord with the letter of the law rather than the spirit of any actual legal principle. Similarly, in political discourse, individuals argue that a given policy is good or ill based on its ability to square with their interpretation of the constitution, rather than its independent merit. This legal positivism inevitably results in worse law when the standard for what legislation can stay on the books is adherence to particular words of the text rather than what laws actually protect citizens.

Counterpoint

These problems are largely solved by the fact that we would write the constitution in the contemporary era. The constitution would consist of clear, plain language, outlining the role of the government; moreover, modern media would undoubtedly ensure that the discourse surrounding its creation is well documented, avoiding any controversy of the writers' intent that plagues older constitutions like that of America. For that reason, most western liberal democracies have a less text-obsessed judicial interpretation of their constitutions. It is crucial never to forget that the words themselves do stand for important concepts, and the value in having relative unambiguous protections for freedom of association and freedom of expression is immense.

Constitutions are Inflexible to the Point of Hurting Government Policy

Point

A written constitution inhibits the government's flexibility. The very purpose of a constitution is to sometimes prevent the government from acting as it otherwise would please. While a government's actions are often controversial, such as increasing video surveillance in response to terrorist attacks, it can often be necessary. It would be unconscionable to set up barriers to the government saving thousands of lives because it violates a particular constitutional principle. In many cases, such as a major security crisis following an act of terrorism, the infringement on civil rights is indeed worth it. Additionally, cutting the range of options available to the government prevents it from fulfilling its campaign promises; the real metric by which we evaluate the legitimacy of laws ought to be the public's approval as expressed through the democratic process. For this reason the United States has focused its holding of terrorist detainees in Guantanamo Bay in Cuba as if they were held within the United States they would have to be put on trial.

Counterpoint

See: first protection of civil liberties argument above. With regard to campaign promises, there are always some actions that governments may not take, and it is the responsibility of political parties not to promise changes that they cannot deliver. The fact that a constitution will prevent them from making good on their promises is not an argument that those promises are legitimate in the first place.

Resistance to Change

Point

Written constitutions are difficult to change. In most western liberal democracies, amending the constitution requires a supermajority in multiple governing bodies. This makes the legal structure of the nation slow to respond to progress in political thought, or to scientific advancements that may impact our conception of what the law ought to be. Worse still, by requiring such broad consensus, the amendment process grants disproportionate power to fringe interests who may stand in the way of codifying parts of the constitution unless their specific demands are met. For example a Canadian politician Elijah Harper prevented the Meech Lake Accord from passing through procedural delays1.1 The Canadian Encyclopedia, "Harper, Elijah", Institute Historica-Dominion, accessed 29/6/11

Counterpoint

Being resistant to change is the entire point of a constitution. It enshrines basic propositions about the role of the state which are unlikely to suddenly change. When amendments to a constitution become necessary, they are the result of long-term, gradual social change. The likelihood of a lone actor actually holding constitutional change hostage to fulfill some unreasonable demand is very low.

The Constitution Would Grant Too Much Power to the Government Under Which it is Written

Point

The wording of the constitution would reflect the political slant of the government in power when it is written. The practical of reality constitution-building is that it must take place under the auspices of a governing party. While this will not grant them absolute power to create a constitution that blatantly privileges them, it affords the government many opportunities to subtly affect the process to create a constitution more favorable to their ideology. The UK's majoritarian democracy, with a first past the post (FPTP) electoral system and political power consolidated within the cabinet, only serves to increase the government's ability to engage in constitutional reform without consultation. After the 1997 general election the Labour Government had 63% if the seats, very close to a two thirds majority that could be reached with their allied parties. The discretionary power that the government will inevitably have over the appointment of officials to the constitutional committee, or approval of subtle changes in wording, gives them a chance to solidify political gains that, while marginal, are permanent.

Counterpoint

In actual fact, creating a constitution would require wide support to even get off the ground, so the chances of a highly partisan constitution are almost nil. Indeed, the process would probably involve greater-than-normal consultation and consensus-building to achieve a constitution that is accepted as legitimate by all.

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